SERGEI MAGNITSKY RULE OF LAW ACCOUNTABILITY ACT OF 2011

HON. BENJAMIN L. CARDIN

Thursday, May 19, 2011

Mr. CARDIN. Mr. President, I rise today to introduce the Sergei Magnitsky Rule of Law Accountability Act of 2011.

While this bill bears Sergei Magnitsky’s name in honor of his sacrifice, the language addresses the overall issue of the erosion of the rule of law and human rights in Russia. It offers hope to those who suffer in silence, whose cases may be less known or not known at all.

While there are many aspects of Sergei’s and other tragic cases which are difficult to pursue here in the United States, there are steps we can take and an obvious and easy one is to deny the privilege of visiting our country to individuals involved in gross violations of human rights. Visas are privileges not rights and we must be willing to see beyond the veil of sovereignty that kleptocrats often hide behind. They do this by using courts, prosecutors, and police as instruments of advanced corporate raiding and hope outsiders are given pause by their official trappings of office and lack of criminal records. Further, we must protect our strategic financial infrastructure from those who would use it to launder or shelter ill-gotten gains.

Despite occasional rhetoric from the Kremlin, the Russian leadership has failed to follow through with any meaningful action to stem rampant corruption or bring the perpetrators of numerous and high-profile human rights abuses to justice.

My legislation simply says if you commit gross violations of human rights don’t expect to visit Disneyland, Aspen, or South Beach and expect your accounts to be frozen if you bank with us. This may not seem like much, but in Russia the richer and more powerful you get the more danger you are exposed to from others harboring designs on your fortune and future.

Thus many are standing near the doors and we can certainly close at least one of those doors. And I know that others, especially in Europe and Canada are working on similar sanctions.

I first learned about Sergei Magnitsky while he was still alive when his client William Browder, CEO of Hermitage Capital, testified at a hearing on Russia that I held as Chairman of the Commission on Security and Cooperation in Europe in June 2009.

At the Helsinki Commission we hear so many heartbreaking stories of the human cost of trampling fundamental freedoms and it’s a challenge not to give up hope and yield to the temptation of cynicism and become hardened to the suffering around us or to reduce a personal tragedy to yet another issue. While we use trends, numbers, and statistics to help us understand and deal with human rights issues, we must never forget the face of the individual person whose reality is the issue and the story of Sergei Magnitsky is as unforgettable as it is heartbreaking.

Sergei Magnitsky was a young Russian tax lawyer employed by an American law firm in Moscow who blew the whistle on the largest known tax fraud in Russian history. After discovering this elaborate scheme, Sergei Magnitsky testified to the authorities detailing the conspiracy to defraud the Russian people of approximately $230 million dollars and naming the names of those officials involved. Shortly after his testimony, Sergei was arrested by subordinates of the very law enforcement officers he had implicated in this crime. He was held in detention for nearly a year without trial under torturous conditions. He developed severe medical complications, which went deliberately untreated and he died in an isolation cell while prison doctors waited outside his door on November 16, 2009.

Sadly, Sergei Magnitsky joins the ranks of a long list of Russian heroes who lost their lives because they stood up for principle and for truth. These ranks include Natalia Estemirova a brave human rights activist shot in the head and chest and stuffed into the trunk of a car, Anna Politkovskaya an intrepid reporter shot while coming home with an arm full of groceries, and too many others.

Often in these killings there is a veil of plausible deniability, gunmen show up in the dark and slip away into the shadows, but Sergei – in inhuman conditions – managed to document in 450 complaints exactly who bears responsibility for his false arrest and death. We must honor his sacrifice and do all we can to learn from this tragedy that others may not share his fate.

Few are made in the mold of Sergei Magnitsky – able to withstand barbaric deprivations and cruelty without breaking and certainly none of us would want to be put to the test. A man of such character is fascinating and in some ways disquieting because we suspect deep down that we might not have what it takes to stay loyal to the truth under such pressure. Magnitsky’s life and tragic death remind us all that some things are more valuable than success, comfort, or even life itself –truth is one of those things. May his example be a rebuke to those whose greed or cowardice has blinded them to their duties, an inspiration to still greater integrity for those laboring quietly in the mundane yet necessary tasks of life, and a comfort to those wrongly accused.

The Wall Street Journal described Sergei Magnitsky’s death as a “slow-motion assassination,” while the Moscow Prison Oversight Committee called it a “murder to conceal a fraud.” Pulitzer Prize-winning reporter Ellen Barry writing in the New York Times stated that, “Magnitsky’s death in pretrial detention at the age of 37... sent shudders through Moscow’s elite. They saw him – a post-Soviet young urban professional – as someone uncomfortably like themselves.”

Outside the media, President of the European Parliament Jerzy Buzek noted that “Sergei Magnitsky was a brave man, who in his fight against corruption was unjustifiably imprisoned under ruthless conditions and then died in jail without receiving appropriate medical care.” While Transparency International observed that, “Sergei did what to most people seems impossible: he battled as a lone individual against the power of an entire state. He believed in the rule of law and integrity, and died for his belief.”

One might have thought that after the worldwide condemnation of Sergei Magnitsky’s arrest, torture, and death in the custody, the Russian government would have identified and prosecuted those responsible for this heinous crime. Instead, the government has not prosecuted a single person and many of the key perpetrators went on to receive promotions and the highest state honors from the Russian Interior Ministry. Moreover, the officers involved feel such a sense of impunity that they are now using all instruments of the Russian state to pursue and punish Magnitsky’s friends and colleagues who have been publicly fighting for justice in his case.

They have forced the American founding partner of Magnitsky’s firm, Jamison Firestone, to flee Russia in fear for his safety in the months following his colleague’s death after learning that the same people were attempting to take control of an American client’s Russian companies and commit a similar fraud. And they have used the same criminal case that was used to falsely arrest Magnitsky to indict Sergei's client Bill Browder. They have opened up retaliatory criminal cases against many of Hermitage’s employees and all of its lawyers, who were forced to leave Russia to save their own lives. These attacks have only intensified since my colleague and friend Congressman Jim McGovern introduced the Justice for Sergei Magnitsky Act of 2011, a similar measure in the House of Representatives, last month.

In the struggle for human rights we must never be indifferent. On this point, I am reminded of Eli Wiesel’s hauntingly eloquent speech, The Perils of Indifference which he delivered at the White House in 1999. On this ever-present danger and demoralizer he cautions us, “Indifference elicits no response. Indifference is not a response. Indifference is not a beginning, it is an end. And, therefore, indifference is always the friend of the enemy, for it benefits the aggressor – never his victim, whose pain is magnified when he or she feels forgotten. The political prisoner in his cell, the hungry children, the homeless refugees – not to respond to their plight, not to relive their solitude by offering them a spark of hope is to exile them from human memory. And in denying their humanity we betray our own.”

Speaking of our humanity, I offer the following words as a contrast. They are from Russian playwright Mikhail Ugarov who created One Hour Eighteen, which is the exact amount of time it took for Sergei Magnitsky to die in his isolation cell at Moscow’s Matrosskaya Tishina prison. Ugarov asks, “When a person puts on the uniform of a public prosecutor, the white lab coat of a doctor, or the black robe of a judge, does he or she inevitably lose their humanity? Do they lose their ability to – even in a small way – empathize with a fellow human being? In the case of Sergei Magnitsky, each of the people who assumed these professional duties in the case left their humanity behind.”

The coming year will be a significant moment in the evolution of Russian politics. With Duma elections scheduled for the end of 2011 and presidential elections for early 2012, there is an opportunity for the Russian government to reverse what has been a steady trajectory away from the rule of law and respect for human rights and toward authoritarianism.

Mr. President, private and even public expressions of concern are not a substitute for a real policy nor are they enough, it’s time for consequences. The bill I introduce today sends a strong message to those who are currently acting with impunity in Russia that there will be consequences for corruption should you wish to travel to and invest in the United States. Such actions will provide needed moral support for those in Russia doing the really heavy-lifting in fighting corruption and promoting the rule of law, but they will also protect our own interests – values or business related.

We see before us a tale of two Russias, the double headed eagle if you will. To whom does the future of Russia belong? Does it belong to the Yevgenia Chirikovas, Alexey Navalnys, Oleg Orlovs and countless other courageous, hard working, and patriotic Russians who expose corruption and fight for human rights or those who inhabit the shadows abusing and stealing from their fellow citizens?

Let’s not put aside our humanity out of exaggerated and excessively cautious diplomatic concerns for the broader relationship. Let’s take the long view and stand on the right side – and I believe the wise side – with the Russian people who’ve suffered so much for the cause of liberty and human dignity. They are the ones who daily risk their safety and freedom to promote those basic principles enshrined in Russian law and many international commitments including the Helsinki Final Act. They are the conscience of Russia. And let us tell them with one voice that they are not alone and that concepts like the rule of law and human rights are not empty words for this body and for our government. I urge my colleagues to support this bill.

I ask unanimous consent that the text of the bill be printed in the Record.